Mercado Mercado v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 9, 2024
• Docket: 22-957
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANA EDELMIRA MERCADO No. 22-957 MERCADO, Agency No. A202-066-228 Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 7, 2024 ** Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

Ana Edelmira Mercado Mercado, a native and citizen of El Salvador,

petitions for review of the affirmance by the Board of Immigration Appeals

(“BIA”) of the denial by the Immigration Judge (“IJ”) of her application for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252(d). The BIA adopted the IJ’s

decision without expressing disagreement and also provided its own reasoning.

Accordingly, we review both the IJ’s decision and the BIA’s determination. See

Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). “We review for

substantial evidence the agency’s determination that a petitioner has failed to

establish eligibility for asylum or withholding of removal[.]” Antonio v. Garland,

58 F.4th 1067, 1072 (9th Cir. 2023) (citation, alteration, and quotation marks

omitted). We likewise review the denial of CAT relief for substantial evidence. See

Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022). For the reasons

below, we deny the petition.

1. Substantial evidence supports the agency’s denial of Mercado’s

application for asylum and withholding of removal. On appeal, Mercado does not

challenge the IJ’s dispositive determination that she failed to show that the

government was unable or unwilling to protect her. See Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (“An applicant alleging

past persecution has the burden of establishing that . . . the persecution was

committed by the government, or by forces that the government was unable or

unwilling to control.” (quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023

2 (9th Cir. 2010))). Despite quoting the IJ’s finding in her opening brief, Mercado

does not challenge the finding anywhere in her statement of the issues nor in the

body of her opening brief. An issue not discussed in the opening brief is forfeited.

Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022). 1

2. Substantial evidence supports the agency’s denial of Mercado’s CAT

claim. The record does not compel the conclusion that Mercado will more likely

than not be tortured with the consent or acquiescence of a government official

upon her return to El Salvador. It is well established in our case law that

generalized evidence of crime—and even corruption—is insufficient to establish

CAT relief if the evidence is not particular to the applicant. See Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).

PETITION DENIED.

1 Because Mercado forfeited any challenge to this dispositive element of her

asylum and withholding claims, we do not reach her arguments on appeal regarding her proposed social groups and nexus.